November 2009

President's Corner — It Could Be a Movement

by WSBA President Salvador A. Mungia

I love November. November brings Thanksgiving. Thanksgiving traditions for our family include turkey, stuffing, cranberries, mashed potatoes, pumpkin pie, listening to Arlo Guthrie’s “Alice’s Restaurant” (the long version), and reflecting on the Justice in Jeopardy Initiative in Washington state.

Okay, I lied. Sometimes we skip the pumpkin pie and have apple instead.

And this is the first year that I’ve thought about the Justice in Jeopardy Initiative.

This edition of the Bar News is devoted to the Justice in Jeopardy Initiative. “Justice in Jeopardy” is a nice catchphrase but for me, there’s a problem —  it’s a bit deceptive. You read it and think, justice is alive and well but if we don’t take certain steps, then its health may be in jeopardy.

But justice is not alive and well. It may not be on life support, but it’s not running wind-sprints either. And we all know it.

The schoolyard bully can pretty much do what he wants.

If you’re poor, and you have a legal problem (which believe it or not, if you’re poor, you’re much more likely to have a legal problem than if you’re not poor), you can pretty much forget about justice — shoot, you can pretty much forget about even the chance of getting justice. You don’t even think about getting a fair shake in court because you can’t get in the courthouse — for you, those doors are closed tighter than Al Capone’s vault. If you’re poor, the schoolyard bully can take your lunch money every day and there’s nothing you can do about it. And the bully knows that, too.

Years ago, Dianne Conway, then an associate with my firm and now a partner, and I represented two separate clients, one a married couple and the other a single woman, who were the victims of the schoolyard bully. The bully was a landlord in Tacoma who, for years, had been running a scheme where, when one of his units became vacant, he would list it as available for rent. It was not unusual for a couple of people to give him deposits — for the same unit. He would rent to one and then inform the other that the unit was rented. When they asked for a return of their deposits, he told them to pound sand. He had been doing this for years — with impunity. The amounts were too small for the prosecutor’s office to handle. For literally dozens of people who gave this landlord their money, justice wasn’t simply at risk — it didn’t exist. Because they lived on the edge of financial solvency, they had no funds to hire an attorney, and because they had no funds, the courthouse doors were closed. But for the legal service providers in my area who asked me to take on this case, justice would not have existed for my clients. They literally would have found themselves out on the streets.

While the state provides funding for civil legal aid, it’s not enough. Because funding is inadequate, for the vast majority of this state’s low-income people, justice is a face on the side of a milk carton.

Justice delayed is justice denied.

Not only a catchy phrase but also one filled with truth: delays in the criminal justice system deny justice to the victims, those accused of committing the crime, and society as a whole. Delays in proceeding to trial affect the integrity of the proceedings themselves: degradation or loss of evidence, impairment of witnesses’ memories, or the loss of witnesses themselves. The same holds true for those involved in civil litigation, as attorney fees and costs spiral with each trial continuance caused by lack of courtrooms. We all know that a trial date, as long as there are available courtrooms, drives both pleas in the criminal system and settlements in the civil system. Without pleas and settlements, the system becomes overwhelmed and breaks down.

Are courtrooms available for trial?

In my county, you’re about as likely to see Judge Leighton shank a tee-shot out of bounds as having your civil jury trial heard on the date originally scheduled — it happens, but it’s rare. And it just got worse. The court terminated, because of budget cuts, a pro tem program that helped provide additional courtrooms to hear civil cases. As for those accused of a crime, Pierce County has a backlog of more than 1,500 pending cases — this after a concerted effort by the Superior Court, Prosecutor’s Office, and Department of Assigned Counsel to reduce that number from a high of 2,200 pending criminal cases.

Pierce County is not alone in being overwhelmed. On September 17, I asked Judge Reukauf, of the Yakima County Superior Court, about the effect the lack of funding was having in her county. She replied that there were 53 criminal cases trailing to be heard on that day alone. As for civil cases in Yakima County, Judge Reukauf cautioned: “If our budget is reduced further for 2010, it will force what resources we have to be used solely for criminal cases.” Not a comforting thought for those who are looking to the courts for justice.

The picture is the same across the state. In Franklin County, they are recessing trials on some Friday afternoons because of mandatory furloughs within the prosecutor’s and clerk’s office. In Chelan County, the Mandatory Arbitration Program has been terminated. In Snohomish County, 10 percent of the prosecuting attorneys were terminated. In King County, 20 deputy prosecutors were terminated. In Thurston County, court time available for jury trials is being reduced by six weeks and may be reduced by 10 weeks.

And don’t even ask me about Cowlitz County.

Things are so bad in Cowlitz County that the Cowlitz County Superior Court asked the Administrative Office of the Courts to conduct a study to determine whether the court had adequate resources to handle its caseload. The court was concerned “that recent budget reductions had rendered the court incapable of meeting its constitutional and statutory obligations to administer justice.”[1]

With each swing of the budget axe, Cowlitz County Superior Court is seeing justice leaving the train station with Cowlitz County standing on the station platform. Budget cuts forced the court to eliminate mandatory family law settlement conferences that historically resulted in the resolution of 85 percent of dissolution cases. One courtroom cannot be used for trials one day per week because courtroom clerks are being furloughed. Juvenile court was forced to close one day per week except for detention hearings because of budget cuts. The state Legislature authorized a fifth superior court judge in Cowlitz County, but there is no county funding to pay for the position. After an extensive study, the Administrative Office of the Courts reached the following conclusion:

While no easily defined “bright line” standard exists for determining whether the court has adequate and sufficient resources, Cowlitz County is so far outside the mainstream on nearly every objective measure, that line — however defined — has clearly been crossed.[2]

As Cowlitz County Superior Court Judge Steve Warning told me: “Our backs are against the wall and our options are dwindling.” One of the limited options, one that the judges are working to avoid, is a lawsuit against the Cowlitz County commissioners to require the council to provide adequate funding for the courts. As much as I know that the local judges do not want to get into a dispute with an equal branch of the government, the judges are duty-bound to uphold the Constitution and ensure that there is a functioning justice system for those they serve.

Even with the great efforts and strides made by the Justice in Jeopardy Initiative, Washington state still ranks last among the 50 states in the state’s contribution toward trial court, prosecution, and indigent defense funding. As a result, the counties, such as Cowlitz, are forced to shoulder 80 percent of the expense. And county revenues have been shrinking faster than the polar ice cap.

What can you do?

Once again, it isn’t that hard to make a difference. Take two minutes to find your state representatives (go to http://apps.leg.wa.gov/districtfinder/default.aspx) and then one minute to write a simple message: “I want to thank the Legislature for continuing to fund our state’s trial courts, indigent criminal defense, parent dependency representation, and civil legal aid at almost the level it was able to do so in 2008. I not only hope, but I encourage, you to continue to improve this state’s funding for our civil and criminal justice system.” That’s it — two sentences — it doesn’t have to be long. But, if you’re like I am (and I’m hoping you’re better than that), you are on the lazy side and want to write something even shorter. In that case, go for the Mungia version and just write four short words: “Fund our justice system.”

Now, if just one person writes to their legislator, and simply writes “Fund our justice system,” that legislator will probably just think that constituent is crazy. If two of you write that same legislator with the message “Fund our justice system,” then that legislator may start taking heed. And, as Arlo Guthrie might put it:

You know, if three people do it, three, can you imagine, three people writing to their legislators and saying “Fund our justice system” they may think it’s an organization. And can you, can you imagine 50 people a day, I said 50 people writing to their legislators saying “Fund our justice system,” they may think it’s a movement.[3]

Heed the words of State Representatives Jamie Pedersen and Jay Rodne: “In these difficult times, county and state elected officials need to hear from constituents. . . . Elected leaders listen.” And listen to State Senator Adam Kline: “Lawyers are the ones who can — and therefore must — speak out about the primacy of justice in state government.”

So speak out. Each Thanksgiving, do more than eat some turkey, do more than listen to “Alice’s Restaurant” — send those e-mails, let your state and local representatives know that you care about funding the justice system.

And who knows? They may think it’s a movement. 

WSBA President Salvador Mungia can be reached at smungia@gth-law.com.

NOTES
 1. “Analysis of Cowlitz County Superior Court,” September 2009, Dirk A. Marler, Judicial Services Division Director and Jeffrey E. Hall, State Court Administrator, Administrative Office of the Courts.
 2. Id.
 3. My apologies to Arlo Guthrie.